주식매수선택권 행사가 신주(新株) 발행 법인에 미치는 세법상 법률효과 - 손금(損金) 발생여부를 중심으로

Abstract

When a stock option is exercised, the company which issues new shares usually incurs certain economic loss (“Excercise Expense”) resulting from the spread between the strike price and the fair market value of the relevant stock. This article discusses whether this Exercise Expense should be deductible from the income of the company that has granted stock option (“Granting Company”) for corporate income tax purposes. Although the Korean tax authorities firmly deny deductibility of the Exercise Expense, no clear statutory provision mentions whether the deduction is allowed, and a few provisions which indirectly refer to the issue are split. However, the basic theory of corporate income tax dictates that, in order to accurately measure the amount of income accrued to the Granting Company, the Exercise Expense should be deducted. Otherwise, the same income would be taxed twice, as corporate income of the Granting Company and earned income of the individual option holders. This absurdity resulting from the current practice has been aggravated by the recent tax law amendments that repealed exemption of the income arising from exercise of stock option. It thus appears that now is the right moment for the tax authorities to change their practice into allowing the deduction. However, how much then should be deducted as Exercise Expense, and whether it is same as the gain that an option holder derives from his or her exercise, or restricted to a certain portion of such gain (e.g. value of stock option measured at the moment of grant) is another issue left for further discussion.